Sunday, August 3, 2014

PHMSA Publishes High-Hazard Flammable Trains NPRM

On Friday DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) in the Federal Register (79 FR 45015-45079) on new measures to be taken to increase the safety of crude oil trains. This NPRM follows the advance notice of proposed rulemaking (ANPRM) mostly on the same topic published last September.

PHMSA is taking a fairly comprehensive approach to improving the safety of what it is now calling ‘high-hazard flammable trains’. Where the ANPRM was mainly about the DOT-111 rail cars, this NPRM addresses:

Tank car design; and

High-Hazard Flammable Trains

PHMSA is proposing to add a new definition to 49 CFR 171.8 defining ‘high-hazard flammable train’ (HHFT) as “a single train carrying 20 or more carloads of a Class 3 flammable liquid”. While this rulemaking is being pushed as a response to a number of high-visibility crude oil train wrecks in the last year or so, this simple definition has the potential to involve a number of industries other than the oil and gas industry in making changes to their shipments of flammable chemicals.

The NPRM states that “only crude oil and ethanol shipments would be affected by the limitations of this rule as they are the only known Class 3 (flammable liquid) materials transported in trains consisting of 20 cars or more”. But as the chemical processing industry begins to expand production capabilities to hand the new surge of oil and gas production the rail shipment of various flammable products made from these raw materials is also expected to surge. It is also not clear if other flammable liquids would be transported in trains containing the requisite number of crude oil or ethanol cars.

This is addressed in the NPRM by three questions about which PHMSA is seeking comments.

Emergency Response Notification

The proposed rule would add a new paragraph to the HMR, §174.310 that would include a subparagraph {§174.310(a)(2)} formalizing the recent emergency order requiring railroads to notify State Emergency Response Committees of trains carrying 1 million gallons or more of Bakken crude oil.

The NPRM does briefly address the issue of State disclosure of the routing information to the public. There is no new policy made here. PHMSA reiterates that the routing information is not Sensitive Security Information, and lacking any other means of controlling the information, State disclosure laws prevail. Three of the questions for this section of the NPRM address this information security issue.

HHFT Routing

PHMSA is proposing to modify the current 49 CFR 172.820 to add HHFT trains {§172.320(a)(4)} to the requirements for rail route analysis that currently applies to security-sensitive hazardous materials. This rail-route analysis-selection regulation has been more than a little controversial and I have seen no reports as to the actual effects this has had on routing of toxic inhalation hazard chemical shipments.

PHMSA is asking two specific questions about this rail route analysis topic.

Flammable Liquid Classification

There has been considerable discussion since the Canadian accident about the hazard classification of Bakken crude oil. PHMSA is proposing to add a new paragraph {§173.41} to the HMR to describe the sampling and testing requirements for ‘mined gasses and liquids). This new requirement does not specify what testing must actually take place, but rather requires that an appropriate sampling and testing protocol be established by the shipper.

The NPRM discussion notes that the American Petroleum Institute (API) has prepared a draft of a sampling and testing recommendation (API RP 3000) that is currently undergoing the API approval process. This provides much more detail about the testing process and considerations. I would suspect that it might get incorporated by reference if the final version of the API document is completed by the time that the final rule for this rulemaking gets published.

PHMSA has included five questions in the NPRM on this subject.

HHFT Train Requirements

The NPRM addresses two operational characteristics of trains in their discussion of ‘Additional Requirements for High-Hazard Flammable Trains’; train speed and breaking. Controls on these factors are intended to reduce the severity of any accident involving HHFT, but might also be expected to reduce by some small amount the number of accidents that occur (PHMSA does not include any accident elimination from these controls in their cost-benefit analysis).

The proposed regulation would add a new speed requirement as part of a newly added 49 CFR 174.310. Subparagraph (a)(3) {NOTE: There is a misprint in the NPRM discussion that refers to (a)(4) at this point} would limit HHFT’s to a maximum speed of 50 mph. Additional (read lower) speed requirements are set for a variety of circumstances of location and breaking systems and the presence of rail cars that do not meet the new construction requirements outlined in this NPRM.

Interestingly, the requirement for the new rail car design is applied to all flammable liquid carrying cars, not just the crude oil or ethanol that PHMSA claims to be the only shipments directly affected by this NPRM. There is another misprint in the discussion section that does not include the word ‘flammable’ in describing the tank cars that must meet the new standards to allow an HHFT to exceed 40 mph. The ‘flammable liquid’ characterization is included in the actual proposed language for §174.310(a)(3)(i).

PHMSA has included 10 specific questions about their proposed speed rules and an additional 5 about break design issues.

Tank Car Design

In this NPRM PHMSA is proposing the specification {§179.202} for a new hazardous material tank car for flammable liquid service; the DOT 117. In addition PHMSA is also defining performance requirements for alternatives to the DOT 117 specification {§179.202-11} that would provide equivalent levels of protections; such cars would receive the DOT 117P designation. All new railcars for flammable service constructed after October 1, 2015 would be constructed to the new standards.

There are two alternatives to the DOT 117 design that PHMSA is considering in this NPRM; the AAR 2014 recommended car and the Enhanced Jacketed CP-1232. PHMSA includes a detailed discussion of the pros and cons of the three designs. The two alternative designs are (according to the PHMSA discussions) strong improvements over the current DOT 111 cars but not quite as effective as the DOT 117 design. They are being considered because of their lower cost and PHMSA is required by law to consider cost effective alternatives.

DOT 111 Phase Out

It is readily apparent that the current fleet of DOT 111 tank cars does not meet the performance standards for the DOT 117P rail cars. This NPRM provides phase out dates for the continued use of DOT 111 cars in flammable service and provides a discussion of the refit requirements that would allow current DOT 111 cars to be converted to DOT 117P performance standards.

The following table outlines the phase out periods for the current DOT 111 fleet in HHFT service. Those cars would still be acceptable for flammable liquid transportation in non-HHFT trains.

Packing Group
Not authorized for HHFT after

This will still potentially effect shippers of flammable liquids other than crude oil and ethanol since the shipper has no idea what train the car will be attached to in transit. Since an HHFT is not necessarily a ‘unit train’ carrying just one type commodity, flammable liquids other than crude oil or ethanol could be carried on an HHFT and DOT 111 cars in that service would not be allowed under the proposed language.

PHMSA proposes 11 questions concerning the use and conversion of the existing rail car fleet.

Public Comments

PHMSA is soliciting public comments on specific questions posed in the NPRM and on the proposed rule in general. Comments may be submitted via the Federal eRulemaking Portal (; Docket # PHMSA-2012-0082). Comments should be submitted by September 30th, 2014.

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